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2014 DIGILAW 804 (CAL)

Asoke Kumar Bhattacharyya v. Tapan Bhattacharyya

2014-08-21

SUBRATA TALUKDAR

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JUDGMENT : Subrata Talukdar, J. In this application under Article 227 of the Constitution of India challenge is thrown to the order impugned no.13 dated 15th June, 2013 in Title Suit No.104 of 2012, passed by the learned 2nd Civil Court (Junior Division) at Serampore, imposing cost of Rs. 1,000/- on the petitioner while allowing an application filed by him for amendment of plaint under Order 6, Rule 17 of the Code of Civil Procedure. 2. Sri Ayanava Bhattacharyya, learned advocate appearing for the petitioner submits that his client is the plaintiff in Title Suit No.104 of 2012. The said suit was instituted for declaration and permanent injunction. 3. Drawing the attention of this Court to the plaint in Title Suit No.104 of 2012, Sri Bhattacharyya submits that at paragraph 1, it is pleaded as follows: "1. The subject matter of the suit is an ejmal passage. It is recorded in the R.S. Khatian No. 1145/1 (L.R. Khatian No. 1297/1) of Mouza - Serampore, J.L. No.: 13, R.S. Dag No.8640/8983 (L.R. Dag No. 8658), measuring 0.001 acre (1 Chittak or 45 Sq.Ft.) within Serampore Police Station and in the district of Hooghly. It is curved out from principal Dag No. 8640 of which the Plaintiff is the owner/Administrator vide a Probate/Letters of Administration granted by the Additional District Judge, 1st Court, Hooghly at Chinsurah in Probate Suit No. 8 of 1989, which was confirmed by the Honble High Court in F.A. No. 297 of 2002. Description of the suit property is given in the schedule below." 4. Sri Bhattacharyya further submits that in the written statement filed on behalf of the present opposite parties/defendants, the right, title and interest over the suit property was disputed. Accordingly, since the present petitioner as plaintiff had already pleaded at paragraph 1 of his plaint that he is the owner/administrator of the suit property which has been carved out from the principal R.S. Dag No.8640, it became necessary for the plaintiff to contest the objection raised in the written statement by filing an application under Order 6, Rule 17 of the Code of Civil Procedure for amendment of the plaint. 5. The petitioner/plaintiff, therefore, filed an application under Order 6, Rule 17 read with Section 151 of the Code of Civil Procedure, inter alia, stating as follows: "1. 5. The petitioner/plaintiff, therefore, filed an application under Order 6, Rule 17 read with Section 151 of the Code of Civil Procedure, inter alia, stating as follows: "1. In paragraph 1 of the plaint, the Plaintiff has categorically stated that the suit Dag No. 8640/8983 is a Bata Dag (sub-divided plot) of principal Dag No.8640, of which the Plaintiff is the owner, but it was not felt necessary to seek for declaration that the said Bata Dag is owned, held and possessed by the Plaintiff. 2. By filing the Written Statement, the Defendants denies the said fact and stated that the Plaintiff is neither the owner of the aforesaid suit Dag, nor it is a sub-divided plot of principal Dag No.8640. 3. Due to the said controversy, now it is felt necessary to adjudicate the same by amending the plaint by seeking a decree of declaration that the Plaintiff is the full and absolute owner of the schedule mentioned Dag No.8640/8983." 6. The petitioner/plaintiff also made a prayer in his schedule of proposed amendment as follows: "12(aa). A decree of declaration that the Plaintiff is the full and absolute owner of the schedule mentioned Dag No.8640/8983." 7. The amendment was objected to by the present opposite parties/defendants by filing a written objection. Also drawing the attention of this Court to the said written objection, Sri Bhattacharyya points out that the pleadings therein are merely routine. 8. Sri Bhattacharyya further submits that on 27th of February, 2013, the learned Trial Court was pleased to frame seven issues for consideration. Thereafter, by the order impugned no.13 dated 15th June, 2013, the learned Trial Court was pleased to consider the amendment application of the petitioner/plaintiff as well as the written objection of the opposite parties/defendants. The learned Trial Court was pleased to allow the amendment application, however, with costs of Rs. 1,000/- payable by the petitioner/plaintiff to the opposite parties/defendants. 9. Sri Bhattacharyya submits that the learned Trial Court fell into error by awarding the cost of Rs. 1,000/- on the ground that the plaintiff is making an additional prayer that he is the full and absolute owner of Dag No.8640/8983. 1,000/- payable by the petitioner/plaintiff to the opposite parties/defendants. 9. Sri Bhattacharyya submits that the learned Trial Court fell into error by awarding the cost of Rs. 1,000/- on the ground that the plaintiff is making an additional prayer that he is the full and absolute owner of Dag No.8640/8983. The learned Trial Court, according to Sri Bhattacharyya, came to the erroneous conclusion that a new case has been created by the plaintiff by seeking to amend his plaint because, by way of the proposed amendment, the plaintiff claims L.R. Dag No.8658 which shows the pathway in the L.R. Parcha. 10. By an order dated 2nd December, 2013, an Hon’ble Single Bench of this Court was pleased to direct service of notice upon the opposite parties. In spite of service of such notice, which is on record by way of an affidavit-of-service, none appears today on behalf of the opposite parties to contest the present application. 11. Sri Bhattacharyya therefore asserts that both R.S. Dag No.8640/8983 and L.R. Dag No.8658 pertain to the same suit property. He further asserts that it is already pleaded by him at paragraph 1 of the plaint in Title Suit No.104 of 2012 (supra) that the subject matter of the suit being an ejmali passage has been carved out from the principal L.R. Dag No.8640. According to him, there is no conflict of stand between the original plaint and the proposed amendment inasmuch as, the petitioner has asserted in his plaint that he is the owner of the principal Dag No. 8640. 12. Sri Bhattacharyya points out that the learned Trial Court while correctly allowing the amendment application, came to the erroneous assumption that by way of proposed amendment, the plaintiff/petitioner was claiming additional reliefs in respect of L.R. Dag No. 8658. He submits that on the basis of such erroneous assumption, the learned Trial Court was inclined to grant exorbitant costs of Rs. 1,000/- in favour of the opposite parties/defendants. He prays for an appropriate order from this Court setting aside the award of costs. 13. Heard. Considered the materials on record. 14. This Court is of the opinion that since the learned Trial Court found that the proposed amendment was necessary to decide the real question in controversy, there was no reason to award the exemplary costs of Rs. 1,000/-. 15. 13. Heard. Considered the materials on record. 14. This Court is of the opinion that since the learned Trial Court found that the proposed amendment was necessary to decide the real question in controversy, there was no reason to award the exemplary costs of Rs. 1,000/-. 15. Since this Court is inclined to be persuaded by the argument of Sri Bhattacharyya that the award of costs is not backed by an appropriate reason, this Court is also persuaded by the fact that the impugned order insofar as it relates to award of costs is not in consonance with the principles enunciated either in Section 35, Section 35A or Section 35B of the Code of Civil Procedure. 16. This Court also finds that the Title Suit is of the year 2012 and the petitioner as plaintiff has filed the application for proposed amendment soon thereafter which has been allowed by the order dated 15th June, 2013. In such view of the matter, this Court finds that there was no mala fide or ulterior motive on the part of the petitioner/plaintiff to seek such an amendment. The learned Trial Court having allowed such amendment, there could be no reason for awarding exemplary costs as done by the impugned order dated 15th June, 2013. 17. In the backdrop of the above discussion, the order impugned no.13 dated 15th June, 2013 is modified to the extent that the award of costs of Rs. 1,000/- payable by the plaintiff to the defendant is set aside. 18. CO 2629 of 2013 is allowed to the extent indicated above. 19. Sri Bhattacharyya is directed to communicate the order passed by this Court to the non-appearing opposite parties. Urgent photostat certified copy of this order, if applied for, be supplied to the parties as expeditiously as possible.